A reprint of an article that first appeared on our friend E. Zachary Knight's Divine Knight Gaming over at Gamasutra lays out a pretty good argument as to why Nintendo is wrong with what it is trying to do with YouTubers creating let's play videos of Wii U and 3DS games.

The short answer on why game developers and publishers like Nintendo are wrong (and is a conclusion rooted in common sense and law): fair use. And even though personalities like PewDiePie may make millions of these videos, that doesn't give the Nintendos of the world the right to monetize these videos. Here's an important excerpt from the article:

"When it comes to money, one of the tests over whether fair use is in play is the impact that use has on the market of the original. So if, as I posted above, that impact is beneficial, then fair use is a go. That means if I am not directly taking business away from you, there is no harm being done.

So in that case, monetization is allowed. If they are acting as an advertiser and driving customers my way, they deserve to be paid for that work. We are getting paid via the increase in business, they are getting paid via YouTube advertising. It is a win win."

It's also important to note that EZK, who develops games on the side, makes a very important distinction about "giving" Let's Play video makers permission to make a video: you can't give or take away a permission you do not have control over because it is simply a case of "fair use." He compares giving such permissions to giving a person permission to "breath" or "eat."

Comments

It should fall under revenue sharing but we do not have a revenue sharing system in place to split pennies so ultimately it should be treated as news because otherwise its banned which creates a worse situation IMO.

Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

Laws and politics both confuse and amuse me. I know its not about Let's Play videos, but what would happen if a reviewer used footage of a game showing bugs or other problems and only showed it in a negative light? Would that be considered "fair use?" The reviewer should be protected under the 1st amendment, but it seems like in this case, it would probably be issued a takedown notice for copyrighted content.

The biggest problem I see with this argument is that it ignores legal precedent.

In the late '80's, when MTV was still growing, they started their "MTV News" broadcast, which had a very distinct theme song - it was just a bunch of songs from videos they played, mashed up into a new song. The end of it was blatantly a cut from "Peace Sells... But Who's Buying?" by Megadeth. Seeing as how none of the writers were being paid for their work being used by MTV, a class action lawsuit was filed for IP infringement.

Keep in mind, this is a wholly new work, much moreso than any Let's Play video could ever be described as. While MTV did win the suit, they didn't win because of Fair Use Doctrine - they won because MTV intentionally used clips of the songs as short as they did. The Megadeth clip was literally two notes shy of MTV being required to pay Megadeth royalties for every time they played that song.

Also, there's a reason rappers who sample songs - again, a clear "wholly new work" - have to pay royalties to the original writer of the songs sampled. Fair Use does not apply in these contexts.

In neither of these cases is the "market" for the original work hindered in any way, yet Fair Use does not make a blanket protection for the people making a wholly new work. There's no way that you can say that Let's Play videos don't fit into this pretty much exactly, either - they use the whole game, and do not transform it in any way whatsoever. Ergo, by legal precedent, Fair Use doesn't apply, and they owe developers money for their videos.

I disagree that this is the same as Let's Play videos. Music sampling creates a new work usually for monetization. The new product created from sampling is consumed in the exact same way as the original work.

In the case of Let's Play videos, the viewers only get to watch footage of the game, not play it. The creator isn't making a brand new game out of someone else's work.

For a ridiculous metaphor, it's like a car company issuing a takedown notice for a YouTube review because it captured the essence of the driving experience and now people won't buy the car, and instead watch the video.

The Megadeth case I described fits into what you said - again, the media in question isn't being consumed in the same manner. People didn't watch MTV News because they wanted to listen to a song, just like people don't watch Let's Play videos because they want to play a video game.

Music sampling is an interesting case to bring up as it really doesn't apply to let' play videos. We know that cutting together footage for some use has a strong case for fair use, but the question is, does recording and redistributing gameplay footage of often the entire game qualify.

A more recent case is that involving the Haithi Trust. In that case, libraries made whole digital copies of copyrighted books and made those copies available for full text searching and for disabled library patrons to access. That case was argued on fair use grounds and the libraries won.

I don't feel that either sampling or the Haithi Trust case apply much to Let's Play videos. It is a wholly new transformative work. But based on my reading of case law surrounding fair use, I have a strong feeling that it can and probably is fair use, barring some restrictions.

Restrictions might include:

Music in the game. Some music is merely licensed for use in the game and that license is not transferable to uses by the gamer. So a separate license would need to be applied for by the YouTuber to include it.

Cut Scenes. Because the cut scenes are the exact same for all players and more akin to movies than the game itself including them in whole is likely to fail a fair use test.

The particular fair use test mentioned is potential market AND value. This makes things a bit more complicated since that includes an IP owner's concerns regarding negative representations of their work. So it does not have to take business directly away in order to potentially fail that test.

That is true, but there are other alternatives to truly disparaging usage of your games. One does not need to raze the entire YouTube Let's Play landscape to fight it.

While I don't agree 100% (really I don't agree much at all) with Nintendo's route, it is one way to avoid negative valuation of a brand.

But if all you are worried about is people posting negative reviews, or statements about your game or company, then the best way to handle it is to make a better product, or respond in a way that refutes those comments without pulling and Ubisoft.